Personal jurisdiction.

A defendant's appearance in an action is deemed to be the equivalent of personal service of a summons, and, in the absence of an objection to jurisdiction by way of a motion or answer, the appearance confers personal jurisdiction over that defendant, pursuant to CPLR 320[b]. In addition, a defendant may appear informally by actively litigating the action before the court. Here, the defendant waived the defense of lack of personal jurisdiction by filing a notice of appearance and opposing the plaintiff's motions to confirm the referee's report without simultaneously asserting an affirmative objection to jurisdiction. 

U.S. Bank N.A. v. Jong Shin, NY Slip Op 01029 (2d Dep't February 28, 2024)

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Motions to dismiss.

Under CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. The defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations. Here, the cause of action alleging fraud was barred by the specific terms of the contract of sale  of a commercial property. The contract of sale utterly refuted the plaintiff's factual allegations and conclusively established a defense to the complaint as a matter of law.

Arco Acquisitions, LLC v. Tiffany Plaza, LLC, NY Slip Op 00888 (2d Dep't February 21, 2024)

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Contract law.

A party repudiates a contract where, before the time of performance, that party puts it out of his power to keep the agreement. Besides giving the non-repudiating party an immediate right to sue for damages for total breach, the repudiation discharges the non-repudiating party's obligations to render performance in the future. 

EPAC Tech., Inc. v. John Wiley & Sons, Inc., NY Slip Op 00933 (1st Dep't February 22, 2024)

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Statutes of limitations.

An action to foreclose a mortgage is governed by a six-year statute of limitations, pursuant to CPLR 213[4]. Where the mortgage debt is accelerated, the entire balance of the debt accrues, and the statute of limitations begins to run on the entire debt.

Wilmington Trust Co. v. Yonkus, NY Slip Op 00925 (2d Dep't February 21, 2024)

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Assumption of the risk.

Under the doctrine of primary assumption of risk, a voluntary participant in a sport or recreational activity is deemed to have consented to the commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.

Alfieri v. State of New York, NY Slip Op 00886 (2d Dep't February 21, 2024)

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Comparative negligence.

In order to be entitled to summary judgment on the issue of a defendant's liability, the plaintiff does not bear the burden of establishing the absence of his own comparative negligence.  However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.

Abramov v. Martinez, NY Slip Op 00885 (2d Dep't February 21, 2024)

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Leave to enter a default judgment.

Pursuant to CPLR 3215, a plaintiff moving for leave to enter a default judgment must file proof of: (1) service of the summons and the complaint; (2) the facts constituting the claim; and (3) the defendant's default. In order to successfully oppose the motion, the defendant must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action. A corporation's failure to receive copies of process served upon the Secretary of State due to a breach of its own obligation to keep a current address on file with the Secretary of State does not constitute a reasonable excuse for its delay in appearing or answering the complaint, although there is no per se rule. In determining whether a reasonable excuse was demonstrated, a court should consider, among other factors, the length of time for which the address had not been kept current.

Bachvarov v. Khaimov, NY Slip Op 00753 (2d Dep't February 14, 2024)

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A school's duty of care.

A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and it will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The duty owed derives from the simple fact that the school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians. The standard for determining whether a school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence, placed in the same situation and armed with the same information.

J.B. v. Monroe-Woodbury Cent. Sch. Dist., NY Slip Op 00752 (2d Dep't February 14, 2024)

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Attorneys' fees.

Plaintiff-cooperative owner did not establish its right to recover attorneys' fees from defendants under the commercial proprietary lease. Only a prevailing party is entitled to attorneys' fees, and to prevail, the party seeking fees must be successful on the central relief sought. This determination requires an initial consideration of the true scope of the dispute being litigated, followed by a comparison of what was achieved within that scope. Where the outcome of litigation is mixed and the relief awarded is not substantially favorable to either party, neither party can claim to be the prevailing party. Here, the true scope of the dispute includes both plaintiff's claim to recover past due maintenance and defendants breach of contract and negligence counterclaims which seek to recover substantial damages resulting from plaintiff's alleged failure to address and repair the condition causing the foul odors affecting defendants' unit.

49 E. Owners Corp. v. 825 Broadway Realty, LLC, NY Slip Op 00796 (1st Dep't February 15, 2024)

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Appellate practice.

In reviewing a determination made after a nonjury trial, the Appellate Division's power is as broad as that of the trial court, and it may render a judgment that it finds warranted by the facts, bearing in mind that, in a close case, the trial court had the advantage of seeing and hearing the witnesses. Where the trial court's findings of fact rest, in large measure, on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations.

Ali v. Rahaman, NY Slip Op 00751 (2d Dep't February 14, 2024)

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A plaintiff's motion to proceed anonymously.

In determining whether to grant the motion, the court must use its discretion in balancing the plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to the defendant. Among the factors the court should consider are: 1) whether the plaintiff is challenging governmental activity or an individual's actions; 2) whether the plaintiff's action requires disclosure of information of the utmost intimacy; 3) whether identification would put the plaintiff or innocent third-parties at risk of suffering physical or mental injury; 4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymously; and 5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.

Doe v. Mesivtha, Inc., NY Slip Op 00614 (2d Dep't February 7, 2024)

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